SOURCING AGREEMENT
This sourcing agreement (this "Agreement") is dated May 1, 2002, and is between
DESIGNS, INC., a Delaware corporation ("Designs"), and KELLWOOD COMPANY, a
Delaware corporation ("Kellwood").
Designs is engaged in the business of retail sale of apparel and accessories
("Merchandise") at retail locations throughout the United States. Designs has
submitted a bid to acquire, subject to Section 363 of the U.S. Bankruptcy Code,
substantially all the assets of Casual Male Corp., a Massachusetts corporation,
and certain related entities (collectively, "Casual Male"; that acquisition, the
"Casual Male Acquisition") and has entered into an agreement with
Kellwood under which Kellwood has agreed, subject only to the execution and
delivery of this Agreement, to lend $10 million to Designs on a subordinated
basis, in exchange for a promissory note from Designs to Kellwood (the "Note")
to be applied by the Company in whole or in part to fund a portion of the
proposed purchase price of the Casual Male Acquisition.
As a condition to the parties' entering into and performing their obligations
under the above referenced agreement and the Note, , the parties are entering
into this Agreement.
The parties therefore agree as follows:
Article 1
SOURCING AND SUPPLY SERVICES
1.1 Sourcing and Supply Services. Kellwood shall manufacture or cause to be
manufactured Merchandise for sale to Designs (which for purposes of Article 1
and Article 2 will be deemed to include Designs or any of its Affiliates,
including those operating the business acquired from Casual Male), in accordance
with orders placed with Kellwood by Designs (such Merchandise when ordered by
Designs from Kellwood under this Agreement, "Products"). During the term of
this Agreement, the products and services to be provided by Kellwood hereunder
will be non-exclusive, and subject to Section 1.2, Designs will have the right
to source Merchandise from any Person, it being understood that Kellwood will
not have any obligation with respect to Merchandise sourced from such other
Persons.
1.2 Minimum Quantity. Each Contract Year, provided the Casual Male
acquisition has been consummated, Designs shall place with Kellwood orders for
Products having not less than the following aggregate whole Product Cost ( the
"Minimum Quantity") (not including the Merchandise currently being supplied by
Kellwood to Designs which includes Dockers Exact(r) and Slates(r) product for
Designs Levis/Dockers outlet stores), so long as such Products, satisfactory to
Designs in quality and quantity, are timely supplied by Kellwood at reasonably
competitive prices:
Contract Year 1 $50,000,000
Contract Year 2 $52,500,000
Contract Year 3 $55,125,000
Contract Year 4 $57,881,250
Contract Year 5 $60,775,312
Contract Year 6 $63,814,077
Contract Year 7 $67,004,780
(a) For purposes of this Agreement, "Product Cost" of any Products means
the wholesale price of those Products invoiced by Kellwood to Designs, which
includes the Cost of Goods Sold (as defined in Section 2.3) and the related
Margins (as defined in Section 2.2).
(b) Designs and Kellwood shall cooperate in good faith to assure that
the prices charged or proposed to be charged to Designs by Kellwood are
reasonably competitive.
(c) In the event that the aggregate Product Cost of Designs' purchases
of Products from Kellwood in any Contract Year shall be less than the Minimum
Quantity for such Contract Year specified in (a) above, then (i) the Minimum
Quantity specified in (a) above for the immediately following Contract Year
shall be increased by the amount of such shortfall, up to 20% of the Minimum
Quantity so specified for the Contract Year in which such shortfall
occurred, and (ii) Designs shall pay to Kellwood as liquidated damages an amount
equal to 15.5% of the amount of such shortfall (if any) in excess of 20% of such
Minimum Quantity so specified for such Contract Year. In the event that the
Minimum Quantity for any such following Contract Year has been so increased by
up to 20% of the shortfall from the preceding Contract Year, then to the extent,
if any, that the aggregate cost of Designs' purchases of Products from
Kellwood in such immediately following Contract Year shall be less than the
Minimum Quantity for such following Contract Year (as so increased), Designs
shall pay to Kellwood as liquidated damages an amount equal to 15.5% of such
shortfall in such following Contract Year, and no further payment or adjustment
shall be due and no further increase shall be made by reason of such past
shortfalls in the Minimum Quantity specified for any subsequent Contract Year.
1.3 Purchasing Procedure. At its expense, Designs shall prepare and deliver
reasonably detailed Product specifications in writing to Kellwood.
(a) Kellwood shall then promptly supply Designs with samples of the
Products so ordered.
(b) If such samples are satisfactory to Designs in quality and the
Product Cost is competitive, Designs shall then, using purchase orders in a form
reasonably acceptable to Kellwood (including providing for a commercially
reasonable schedule for delivery), authorize Kellwood to manufacture and sell to
Designs those Products in the quantities specified in such purchase orders.
(c) Kellwood shall then promptly confirm those orders in writing and use
commercially reasonable efforts to comply with the specifications and timing
requirements of Designs.
(d) Designs may, at its expense and if it deems appropriate, cause its
employees and representatives to travel to Kellwood's offices and to facilities
of Kellwood in connection with the purchase of Merchandise.
(e) Designs may return to Kellwood for full credit any Products that
Designs , in good faith, determines to be commercially defective. To the extent
that any defective product, together with any claims, as specified in Section
2.5, exceeds 5% of the Minimum Quantity for the Contract Year, as specified in
Section 1.2, such amount will be credited for purposes of determining Designs'
compliance with its obligations under Section 1.2.
1.4 Forecasts by Designs. In order to facilitate Kellwood's sourcing of
Products, Designs shall provide Kellwood from time to time and as reasonably
requested by Kellwood with forecasts of the quantity and type of Merchandise
Designs intends to purchase under this Agreement in the reasonably foreseeable
future, but in no event more than six months ahead of placing orders.
1.5 Maintenance of Records by Kellwood; Audit Rights. Kellwood shall provide
to Designs summary and detailed invoice and Cost of Goods Sold information
with respect to each purchase order Designs places under this Agreement.
Kellwood shall maintain reasonably complete and accurate records of all Products
ordered, in process, finished, or in transit sufficient to support such invoices
and Cost of Goods Sold and shall at the request of Designs provide reasonable
access to, or copies of, those records.
1.6 Post-Order Responsibility. Once a purchase order has been submitted to
Kellwood, Designs may not materially modify or cancel that order without
Kellwood's prior written consent, which shall not unreasonably be withheld.
Designs may, however, modify or cancel without Kellwood's prior written consent
a purchase order submitted to Kellwood if Kellwood fails to comply in any
material respect with the terms of that purchase order, in which case the rights
of Designs will be governed by the terms of that purchase order. Designs shall
bear all out-of-pocket costs reasonably incurred by Kellwood as a result of any
material modification or cancellation of a purchase order by Designs. Kellwood
shall promptly advise Designs of any anticipated problems or delays in
production or delivery and shall use commercially reasonable efforts to resolve
any such problems.
1.7 Involvement by Kellwood Personnel. Kellwood will provide the dedicated
services of such Kellwood personnel as may be reasonably necessary for the full
performance of this Agreement.
Article 2
DELIVERY AND PAYMENT
2.1 Delivery of Products. Kellwood will be deemed to have completed delivery
of any Products, and title risk of loss with respect to those Products will pass
to Designs, F.O.B. Kellwood's shipping point.
(a) Kellwood will be responsible for clearing Products through customs
in foreign and domestic ports.
2.2 Margin. The Product Cost for Products provided by Kellwood under this
Agreement shall include a margin (the "Margin") equal to 15.5% of such Product
Cost.
2.3 Cost of Goods Sold. The Product Cost charged by Kellwood to Designs and
its Affiliates for any Products will be Kellwood's wholesale price of those
Products, which includes the Cost of Goods Sold (as defined in Section 2.3) and
the related Margins (as defined in Section 2.2.) The "Cost of Goods Sold" for
each shipment of Products means actual costs for pre-production, plus sourcing
or production costs, which will be comprised of the product purchase price or,
if manufactured, the direct materials, direct labor and manufacturing overhead;
plus freight-in, duty, commissions, or any other direct costs of purchasing or
manufacturing the product. In addition, Cost of Goods Sold shall include
properly allocable warehousing and distribution costs.
2.4 Payments for Products. On the later of (1) the date on which Products are
delivered F.O.B. Kellwood shipping point and (2) the date designated in the
purchase order for delivery of those Products, if that date is 10 days or more
after the date of actual delivery of those Products, Kellwood shall notify
Designs of the total amount due to Kellwood for the Product Cost for such
Products. Within 60 days of Kellwood's presentation to Designs of Kellwood's
invoice for any Products (the end of that 60-day period, the "Payment
Deadline"), Designs or one of its Affiliates shall pay to Kellwood the Product
Cost for those Products by wire transfer of immediately available funds to an
account designated by Kellwood. Any amounts not paid by the Payment Deadline
will accrue interest daily from the Payment Deadline until paid in full at an
annual rate equal to the lesser of (1) the prime rate announced by Citibank,
N.A. from time to time plus 3% and (2) the maximum rate allowed by law.
2.5 Claims. Kellwood shall, at the request of Designs, accept the return of
Products rejected by Designs and, at the request of Designs, process appropriate
claims against Kellwood or any third-party source of those rejected Products,
including without limitation claims for refund or credit. To the extent that
any financial settlement, payment, or other financial concession actually
effected in connection with any such claims, and all such financial settlements,
payments, or other financial concessions, together with the Product Cost of any
defective Product, as specified in 1.3(e)exceeds 5% of the Minimum Quantity for
the Contract Year, as specified in Section 1.2, such amount will be credited for
purposes of determining Designs' compliance with its obligations under Section
1.2.
Article 3
TERM AND TERMINATION
3.1 Term. Unless terminated earlier as provided in this Agreement, the term
of this Agreement is from the date of this Agreement until midnight on February
7, 2010, the last day of Designs' 2009-2010 fiscal year.
3.2 Termination. This Agreement may be terminated as follows:
(1) at any time by written agreement of Kellwood and Designs;
(2) by Designs upon 15 days' notice to Kellwood if any representation made in
this Agreement by Kellwood was materially inaccurate when made, remains
materially inaccurate, and is not cured prior to expiration of the 15-day
period;
(3) by Kellwood upon 15 days' notice to Designs if any representation made in
this Agreement by Designs was materially inaccurate when made, remains
materially inaccurate, and is not cured prior to expiration of the 15-day
period;
(4) by Designs immediately upon notice to Kellwood if Kellwood has materially
breached any of its obligations under this Agreement and either of the
following applies:
(A) that breach can reasonably be cured within a 60-day period from the
date Designs notifies Kellwood of that breach and Kellwood has not
cured that breach prior to expiration of that 60-day period; or
(B) that breach cannot reasonably be cured within that 60-day period and
Kellwood does not commence curing that breach within that 60-day
period and proceed diligently toward completing that cure, which
cure must in any event be completed prior to expiration of a 120-day
period from the date Designs notifies Kellwood of that breach;
(5) by Kellwood immediately upon notice to Designs if Designs has materially
breached any of its obligations under this Agreement and either of the
following applies:
(A) that breach can reasonably be cured within a 60-day period from the
date Kellwood notifies Designs of that breach and Designs has not
cured that breach prior to expiration of that 60-day period; or
(B) that breach cannot reasonably be cured within that 60-day period and
Designs does not commence curing that breach within that 60-day
period and proceed diligently toward completing that cure, which
cure must in any event be completed prior to expiration of a 120-day
period from the date Kellwood notifies Designs of that breach;
(6) by Designs immediately upon notice to Kellwood if there occurs a
Bankruptcy Event with respect to Kellwood;
(7) by Kellwood immediately upon notice to Designs if there occurs a
Bankruptcy Event with respect to Designs; and
(8) by either party upon notice to the other in the event that (x) the Casual
Male Acquisition shall not have been consummated prior June 28, 2002 or
(y) performance of this Agreement is rendered impossible for 180
consecutive days due to any Event of Force Majeure (as defined in Section
6.1).
3.3 Effects of Termination. In the event of the expiration or termination of
this Agreement for any reason, Kellwood will have no further liability or
obligation to Designs under this Agreement except as otherwise provided in this
Agreement, and except that this Agreement will govern the rights and obligations
of the parties with respect to all orders for Products placed prior to
expiration or termination of this Agreement.
3.4 Return of Materials. In the event of expiration or any termination of
this Agreement for whatever reason, then within 15 calendar days following sale
or other disposition of all Products delivered pursuant to this Agreement each
party shall return to the other party all samples, books, records, designs, and
materials of any kind belonging to the other party and all copies thereof.
3.5 Confidentiality. Neither party may disclose to any other Person any
Confidential Information belonging to the other party that was disclosed under
this Agreement. Upon the expiration or termination of this Agreement, each
party will cease to use the other party's Confidential Information and shall
return to the other party all tangible Confidential Information provided to it
by the other party.
3.6 Copyright, Patent and Trademark Rights. Each of the parties reserves all
property rights, including copyright, patent, and trademark rights, in all of
their respective materials, publications, research, software, data, devices,
designs, concepts, and trade names in connection with the products and services
provided by Kellwood to Designs under this Agreement.
Article 4
REPRESENTATIONS
4.1 Representations of Designs. Designs represents to Kellwood as follows:
(a) Designs is a corporation validly existing and in good standing under
the law of the State of Delaware.
(b) Designs' board of directors has duly authorized Designs to execute
and deliver this Agreement and the Note and perform its obligations under
this Agreement and the Note, and no other corporate proceedings of Designs
are necessary with respect thereto.
(c) Each of this Agreement and the Note constitutes the valid and
binding obligation of Designs, enforceable in accordance with its terms,
except as enforceability is limited by (A) any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting creditors'
rights generally, or (B) general principles of equity, whether considered
in a proceeding in equity or at law.
(d) Designs' execution and delivery of this Agreement and the Note and
performance of its obligations hereunder and thereunder does not (1)
violate any provision of the certificate of incorporation or bylaws of
Designs as currently in effect, (2) conflict with, result in a breach of,
constitute a default under (or an event that, with notice or lapse of time
or both, would constitute a default under), accelerate the performance
required by, result in the creation of any Lien upon any of the properties
or assets of Designs under, or create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under, any
Contract to which Designs is a party or by which any properties or assets
of Designs are bound, or (3) violate any Law or Order to which Designs is
subject, except, in the case of (2) or (3) above, for such conflict,
breach, default, acceleration, Lien, or right, or notice as would not,
individually or in the aggregate, have a material adverse effect on
Designs and its subsidiaries taken as a whole.
(e) Designs is not required to obtain the Consent of any Person,
including the Consent of any party to any Contract to which Designs is a
party, in connection with execution and delivery of this Agreement and the
Note and performance of its obligations hereunder.
4.2 Representations of Kellwood. Kellwood represents to Designs as follows:
(a) Kellwood is a corporation validly existing and in good standing
under the law of the State of Delaware.
(b) Kellwood's Executive Committee of the board of directors has duly
authorized Kellwood to execute and deliver this Agreement and perform its
obligations under this Agreement, and no other corporate proceedings of
Kellwood are necessary with respect thereto.
(c) This Agreement constitutes the valid and binding obligation of
Kellwood, enforceable in accordance with its terms, except as
enforceability is limited by (A) any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights
generally, or (B) general principles of equity, whether considered in a
proceeding in equity or at law.
(d) Kellwood's execution and delivery of this Agreement and performance
of its obligations hereunder does not (1) violate any provision of the
certificate of incorporation or bylaws of Kellwood as currently in effect,
(2) conflict with, result in a breach of, constitute a default under (or
an event that, with notice or lapse of time or both, would constitute a
default under), accelerate the performance required by, result in the
creation of any Lien upon any of the properties or assets of Kellwood
under, or create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under, any Contract to which
Kellwood is a party or by which any properties or assets of Kellwood are
bound, or (3) violate any Law or Order to which Kellwood is subject,
except, in the case of (2) or (3) above, for such conflict, breach,
default, acceleration, Lien, or right, or notice as would not,
individually or in the aggregate, have a material adverse effect on
Kellwood.
(e) Kellwood is not required to obtain the Consent of any Person,
including the Consent of any party to any Contract to which Kellwood is a
party, in connection with execution and delivery of this Agreement and
performance of its obligations hereunder.
Article 5
PRODUCT LIABILITY
5.1 Warranty. Kellwood warrants that each Product supplied to Designs under
this Agreement will:
(a) be of merchantable quality, and fit for its purpose;
(b) be free of any defects in the design, materials or workmanship;
(c) be supplied free of all liens, claims and encumbrances; and
(d) conform to all applicable consumer product labeling and safety
standards.
5.2 Product Liability Insurance. Kellwood shall obtain and maintain product
liability insurance on the Products supplied and such insurance will include a
broad form Vendor's Endorsement covering Designs.
Article 6
MISCELLANEOUS
6.1 Force Majeure. Neither Designs nor Kellwood will be liable for any delays
in the performance of this Agreement due to force majeure and causes beyond its
reasonable control (each, a "Event of Force Majeure"), including without
limitation fires, strikes, disputes, war, civil commotion, terrorist attacks,
epidemics, floods, accidents, delays, shortages and laws, regulations, or
requests of any Governmental Authority. Upon occurrence of an Event of Force
Majeure, Designs will not be relieved of its obligations to make timely payments
in accordance with this Agreement.
6.2 Status of Relationship. Kellwood's relationship with Designs under this
Agreement is solely that of an independent contractor, and nothing contained in
this Agreement will be deemed (1) to create a partnership or joint venture
between Designs and Kellwood, (2) to cause Kellwood to be responsible in any way
for the debts, liabilities, or obligations of Designs, or (3) to give either
party the authority to bind or act for the other in any respect, except as
specifically provided in this Agreement.
6.3 Governing Law. This Agreement is governed by the laws of the State of New
York, without giving effect to principles of conflict of laws.
6.4 Jurisdiction; Service of Process. Any Proceeding seeking to enforce any
provision of, or based on any right arising out of, this Agreement must be
brought against any of the parties in the courts of the State of New York,
County of New York, or, if it has or can acquire jurisdiction, in the United
States District Court for the Southern District of New York, and each
of the parties consents to the jurisdiction of those courts (and of the
appropriate appellate courts) in any such Proceeding and waives any objection to
venue laid therein. Process in any such Proceeding may be served by sending or
delivering a copy of the process to the party to be served at the address and in
the manner provided for the giving of notices in Section 6.5. Nothing in this
Section 6.4, however, affects the right of any party to serve legal process in
any other manner permitted by law.
6.5 Notices. Every notice or other communication required or contemplated by
this Agreement must be in writing and sent by one of the following methods: (1)
personal delivery, in which case delivery is deemed to occur the day of
delivery; (2) certified or registered mail, postage prepaid, return receipt
requested, in which case delivery is deemed to occur the day it is
officially recorded by the U.S. Postal Service as delivered to the intended
recipient; (3) next-day delivery to a U.S. address by recognized overnight
delivery service such as Federal Express, in which case delivery is deemed to
occur upon receipt; or (4) facsimile transmission, with written confirmation
from the recipient of receipt of the transmission, in which case delivery is
deemed to occur on the day of transmission (if transmitted by 5:00 p.m. New York
time on a Business Day) or the next Business Day (if transmitted any other
time). In each case, a notice or other communication sent to a party must be
directed to the address for that party set forth below, or to another address
designated by that party by written notice:
If to Kellwood, to:
Kellwood Compnany
600 Kellwood Parkway
Chesterfield, MO 63017
Attention: Thomas H. Pollihan, Esq.,
Senior Vice-President, Secretary and General Counsel
Facsimile: 314-576-3388
If to Designs, to:
Designs, Inc.
66 B Street
Needham, MA 02494
Attention: President
Facsimile: (781) 433-7462
6.6 Severability. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
6.7 Amendment; Waiver. This Agreement may not be amended except by an
instrument in writing signed by or on behalf of each of the parties. No waiver
by any party of any breach by any party of any of its obligations under this
Agreement or any inaccuracy in any representation by any party in this Agreement
will be deemed to extend to any other breach or inaccuracy or affect in any way
any rights arising by virtue of any other breach or inaccuracy.
6.8 Entire Agreement. This Agreement, together with all exhibits and
schedules hereto, constitutes the entire agreement between the parties
pertaining to the subject matter of this Agreement and supersede all prior
agreements, understandings, negotiations, and discussions, whether oral or
written, of the parties. In the event of any direct conflict between
this Agreement and any term of any purchase order of Designs with respect to
Products purchased under this Agreement, this Agreement will govern.
6.9 Counterparts. This Agreement may be executed in several counterparts,
each of which is an original and all of which together constitute one and the
same instrument.
6.10 Assignment. No party may assign any of its rights or obligations under
this Agreement without the prior consent of the other parties, except that
Designs may at any time assign to any Affiliate of Designs any of its rights and
obligations under this Agreement, on condition that concurrently with that
assignment Kellwood, Designs, and that Affiliate enter into an amendment to this
Agreement that (1) makes that Affiliate a party to this Agreement and (2)
provides that Designs guarantees performance by that Affiliate of the assigned
obligations.(a) This Agreement is binding in all respects upon, and inures to
the benefit of, the successors and permitted assigns of the parties.
6.11 Reporting. Designs shall promptly furnish to Kellwood (i) monthly
unaudited financial statements in form and reasonably satisfactory to Kellwood,
(ii) a copy of each Borrowing Base Certificate furnished by Designs to its
senior lenders, and (iii) such other information as to the financial condition
of Designs as Kellwood shall reasonably request.
6.12 Definitions. When used in this Agreement, the following terms have the
following meanings:
"Affiliate" means, with respect to any given Person, any other Person at
the time directly or indirectly controlling, controlled by or under common
control with that Person, or (2) any director, officer or employee of that
Person. For purposes of this definition, "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of
the management and policies of a Person through ownership of voting
securities.
"Bankruptcy Event" means with respect to any Person any of the following:
(1) the institution by that Person of bankruptcy or insolvency proceedings;
(2) the consent of that Person to the institution of bankruptcy or insolvency
proceedings against that Person;
(3) the filing by that Person of a petition seeking reorganization or release
under applicable law, or the consent by that Person to the filing of any
such petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of that Person or of any
substantial part of the property of that Person;
(4) the making by that Person of an assignment for the benefit of creditors;
and
(5) the entry of an Order by a court having jurisdiction adjudging that Person
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment, or composition of or in respect
of that Person under applicable law, or appointing a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of that
Person, or of any substantial part of the property of that Person, or
ordering the winding up or liquidation of the affairs of that Person, and
(A) that Person consents to that decree or order or (B) that decree or
order remains unstayed and in effect for more than 60 consecutive days.
"Confidential Information" of either party means any confidential or
proprietary information of that party, and includes but is not limited to
current or anticipated products, processes, know-how, customers, sales,
business affairs, contractual arrangements, and the identity of
Representatives, but does not include the following:
(1) information that is or becomes generally available to the public other
than as a result of a breach of this Agreement by the receiving party or
its Representatives;
(2) information that was within the receiving party's possession or knowledge
prior to its being furnished to the receiving party by or on behalf of the
disclosing party, on condition that the source of that information was not
known by the receiving party to be bound by a confidentiality agreement
with or other contractual, legal or fiduciary obligation of
confidentiality to the disclosing party;
(3) information that is or becomes available to the receiving party on a non-
confidential basis from a source other than the disclosing party or any of
its Representatives, on condition that that source was not known after
reasonable inquiry by the receiving party to be bound by a confidentiality
agreement with or other contractual, legal or fiduciary obligation of
confidentiality to the disclosing party or any other party with respect to
that information; or
(4) information that is independently developed by the receiving party without
use of Confidential Information or otherwise in a manner not consistent
with this Agreement.
"Consent" means any approval, consent, ratification, filing, declaration,
registration, waiver, or other authorization (including any Permit).
"Contract" means any written or unwritten agreement, contract, obligation,
promise, arrangement, or undertaking that is legally binding, including
any amendment or supplement thereto.
"Contract Year" means the fiscal year of Designs, except that Contract
Year 1 begins on the date of this Agreement and ends at midnight on
January 31, 2004, the last day of Designs' 2003-2004 fiscal year.
"Governmental Authority" means any (1) nation, state, county, city, town,
village, district, or other jurisdiction of any nature, (2) federal,
state, local, municipal, foreign, or other government, (3) governmental or
quasi-governmental authority of any nature (including any governmental
agency, branch, department, official, or entity and any court or other
tribunal, including an arbitral tribunal), (4) multi-national organization
or body, and (5) body exercising, or entitled to exercise, any
administrative, executive, judicial, legislative, police, regulatory, or
taxing authority or power of any nature.
"Law" means any federal, state, local, municipal, foreign, international,
multinational, or other administrative order, constitution, law,
ordinance, principle of common law, regulation, statute, or treaty.
"Lien" means any charge, claim, community property interest, condition,
equitable interest, lien, option, pledge, security interest, right of
first refusal, or restriction of any kind, including any restriction on
use, voting, transfer, receipt of income, or exercise of any other
attribute of ownership.
"Order" means any award, decision, injunction, judgment, order, ruling,
consent decree, subpoena, or verdict entered, issued, made, or rendered by
any court, arbitral tribunal, administrative agency, or other Governmental
Body.
"Permit" means any approval, consent, license, permit, waiver, or other
authorization issued, granted, given, or otherwise made available by or
under the authority of any Governmental Authority or pursuant to any Law.
"Person" means any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company,
joint venture, estate, trust, association, organization, labor union,
Governmental Authority or other entity.
"Proceeding" means any action, arbitration, audit, hearing, investigation,
litigation, or suit (whether civil, criminal, administrative,
investigative, or informal) commenced, brought, conducted, or heard by or
before, or otherwise involving, any Governmental Authority.
"Representative" means, with respect to any Person, any director, officer,
employee, agent, consultant, advisor, or other representative of that
Person, including legal counsel, accountants, and financial advisors.
The undersigned are executing this Agreement on the date stated in the
introductory clause.
KELLWOOD COMPANY
By:
Name:
Title:
DESIGNS, INC.
By:
Name:
Title: